HOW TO USE THIS WEBSITE
When you click on the Family Resource Guide, you will find educational material on the topics needed to organize your personal information, which are separated into sections.
Please note that at the end of each section there is a link to the data pages that match that section, which are used to record your personal information. These data pages are also available in the Resources section. These can be downloaded and printed for your use.
Ben Franklin said that there are only two things that are unavoidable: Death and Taxes. Planning is the responsible way to deal with both of these inevitable aspects in our lives. The following pages offer topics which fall into the “Everything You Didn’t Want to Know – But Needed to Ask.” category. Becoming informed and discussing these issues with your family will result in reduced stress and anxiety for everyone involved.
NOTE: Your family will need to know the location of all your important papers. Your attorney and accountant will guide your estate administrator through the necessary steps to settle your estate.
We have made great strides in taking control of certain aspects of health care. The following two forms are available in most states to allow each of us some manner of control over our own body and death. Check with your state to see if similar provisions are available.
Advanced Health Care Directive and Power of Attorney for Health Care
The Advanced Health Care Directive (previously referred to as a Durable Power of Attorney For Health Care), is a legally binding document created to assign authority to another person (and two successors) to make necessary MEDICAL decisions for you should you be unable to do so for yourself. The document can be created by an attorney or many states have forms created by their state medical associations. These spell out clearly the circumstances when you do and when you do not want life-sustaining treatment or efforts to prolong life. You may also make any other statements or add attachments to designate your wishes. Check with your state medical association for similar documents.
This is a very simple form to complete. You are encouraged to discuss your wishes with those you ask to be your representative, as well as the rest of your family members. They should know your recorded decisions and where you keep copies of the form. Your representatives should have copies of the completed form.
When choosing someone to be your representative for health decisions, you need to consider carefully several issues:
• Does that person live nearby?
• Is he/she easily accessible by phone?
• Do you feel he/she will be ABLE to carry out your wishes?
I have witnessed situations where the designated representative was incapable of making the difficult decision to honor the requests stated in the documents. These are used during highly emotional times, so choose carefully.
Make certain that your document indicates that photocopies are legal to use. Have copies sent to all designees, and put a copy with your medical record at the physicians’ office and/or hospital (especially if you have an HMO). Keep a copy easily accessible at home. It is suggested that a notice, either with the document or its location, be placed on the refrigerator, in the medicine cabinet or bedside table. These are the three places that paramedics or other emergency personnel check when looking for medications, and they would find the forms. It is suggested that you create a card to carry in your wallet, stating that you have an advanced directive and list the names and phone numbers of your designated agents.
I have witnessed situations where the knowledge of the existence of the document was not communicated to the medical staff until AFTER certain invasive procedures were performed. Hospital medical records containing copies of your document are not necessarily instantly available in emergency situations. Consider having a POLST form also completed as emergency personnel are aware of this form (see below).
NOTE: It is especially nice to write a thank you note to the person who has agreed to act in this capacity for you and attach it to the form. The confidence and appreciation you express will make their job easier to perform.
This may be the most important document you ever sign! By discussing your wishes for health care with your family prior to the time of need and designating someone to make those decisions for you, you have indeed given them a gift of love.
Should the need arise, your wishes can be accomplished, and the designated person is relieved of making those MAJOR decisions, because YOU already have done so. This can eliminate doubts and disagreements within the extended family. It can also ease the grief following a death. Again, there are no “I wonder if I should have . . .” or “Did I do the right thing?” or “What would Mom/Dad have wanted?”
POLST
“The Physician Orders for Life-Sustaining Treatment” (POLST) Paradigm program is designed to improve the quality of care people receive at the end of life. It is based on effective communication of patient wishes, documentation of medical orders on a brightly colored form and a promise by health care professionals to honor these wishes.” Quoted from: http://www.polst.org This form must be completed by your physician. This does not replace the AHCD, but acts in conjunction with it. Many states are using this form, especially in the care facilities. This bright pink paper travels to and from the hospital/physician's office with the patient, making it clear to all medical personnel that decisions have been made by the patient.
NOTE: A similar “Durable Power of Attorney for Financial Purposes” should also be considered and be part of your estate planning. This document designates and allows someone to handle your financial matters in case of incapacity. This eliminates the need for Conservatorship, which is a very costly and cumbersome legal issue. The similar safeguards can be built into these documents that are in the Advanced Health Care Directive. See your attorney to prepare this document as part of your estate plan.
The following is presented as a generic educational and informational section,
and is not intended to give any form of legal advice.
Volumes have been written on wills and probate versus trusts. The following is an overview of these issues to educate you about the basic concepts. Specific guidance should be obtained from your estate planning attorney to create a plan to fit your personal and unique situation. Examples of estate planning documents that you may want to consider discussing with your attorney include: Revocable Living Trusts, Wills, Durable Powers of Attorney for Financial Purposes (to eliminate need for financial conservatorship in case of incapacity), and an Advanced Health Care Directives/ Durable Powers of Attorney for Health Purposes.
When a person dies, the estate needs to be legally distributed. Probate law was established for this purpose, to provide consistency and order. Many people erroneously think that if they have a will, it does not need to be “probated.” However, a will is basically a set of instructions to the Court describing in detail how you want your estate to be distributed. If someone dies without having a will (or “intestate”), the assets will be distributed according to a system designated by the laws in that state. If you hold real property in different states, those assets will be probated in each state, adding additional court and attorney fees for each state involved.
If the assets are small or going directly to a spouse, most states have simple ways of handling that situation. Be aware of the important aspects involved, (especially the length of time it takes for a probated estate to settle), and the financial expenses incurred.
The following are minimum fees for both the attorney and the executor, set by the State of California. Check with your individual State Bar Association for exact figures for your state. Note that these are the minimum amounts allowed and the final charges may be more depending upon the scope of work done by your attorney. The value of your estate is calculated on full fair market value, even if you have an outstanding mortgage(s) on real property.
4% of the first $100,000
3% of the next $100,000
2% of the next $800,000
1% of the next $9 million
½ of 1% on the next $15,000,000
Amount requested from the court for estates above $25,000,000
If you have minor children, the guardianship designation in the will is one of the most loving gifts you can leave your children! These little ones are the most precious parts of your lives. Giving them the comfort of knowing that you made provision for them, if you can not be there, is indeed that gift of love that continues forever! In addition, you may have chosen specific people for this role and the courts need to know that information.
Many parents put off making a will because they simply cannot decide upon designation of guardian(s). Understand that there is no one qualified to raise your children as well as you can! But if you are not here, who is second best? Again, the courts WILL make the decision. Don't you want your wishes known?
The revocable living trust is becoming very popular as a tool to pass an estate down to the next generation, with less tax obligation and a minimum of legal fees. A trust does not go through the probate process. This is advantageous for some, but may be a disadvantage for other situations, as the trust administration has no court oversight. A trust is more expensive than a will to create, but it can save your family large amounts of money when the person dies. Consult your estate planning attorney for his/her advice for your family situation.
Most people do not understand that the amount of paperwork involved with settling a trust is still considerable. Again, in addition to a living trust, you also need to consider creating a Will, a Durable Power of Attorney for Finance (to avoid financial conservatorship in case of incapacity), an Advanced Medical Directive, and perhaps a Community Property Agreement for residents of states which have community property statutes.
Other trusts are now becoming more popular. These include charitable remainder trusts, insurance trusts, Q-tip trusts, and others. A competent estate planning attorney, especially one familiar with the issues of elder law, will guide you through the maze. Finding the right attorney is similar to finding just the right physician. Personal referral is always one of the best ways to locate assistance. Don’t feel awkward about interviewing attorneys. They will be handling your most confidential information and plans.
When a death occurs, the estate assets need to be evaluated to determine if federal and state estate taxes are due. The estate tax exemptions limit varies and depends upon what Congress has decided upon for the current year. An attorney, CPA or accountant can direct or assist you with this project. Make certain they have had experience with filing these documents. The IRS allows only nine months following a death to file the federal estate tax returns (Form 706) and the payments – and the IRS doesn’t take an IOU! Extensions must be applied for in a timely manner, if the return cannot be completed within the nine-month limit. However, the estimated estate tax payment must also accompany that request for extension.